This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Timothy John O’Meara,
Becker County District Court
File No. KX-99-766, K8-99-765
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Becker County Attorney,
John M. Stuart,
State Public Defender, Benjamin J. Butler, Assistant State Public Defender,
Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
Appeal from order resentencing appellant on remand from postconviction challenge to 2000 sentence for two counts of second-degree criminal sexual conduct. Appellant argues that the upward departure to the statutory maximum based on the patterned-sex-offender statute violated his right to a jury trial under Blakely and that the district court erred in concluding Blakely did not apply because appellant’s sentence became final in August 2000. Appellant argues that the resentencing resulted in two entirely new sentences. In the alternative, appellant argues that Blakely is retroactive to the release of Apprendi. We affirm.
In 1999, Timothy J. O’Meara, appellant, was charged with two counts of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a)(2) (1998). On April 4, 2000, appellant was convicted of the crimes charged.
sentencing was postponed until May 2000 so that a presentence evaluation could
be completed. The presumptive sentences
for appellant’s offenses under the sentencing guidelines were 51 and 60 months
June 26, 2000, the United States Supreme Court decided Apprendi v. New Jersey, holding that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 530
April 5, 2002, appellant filed a petition for post-conviction relief per the
decisions under Apprendi and Grossman. The district court denied the petition and
this court affirmed its decision. O’Meara v. State, No. C0-02-1982 (
June 24, 2004, in Blakely v. Washington,
the United States Supreme Court held that Apprendi
invalidated upward durational departures in guideline sentencing
At appellant’s August 11, 2004 re-sentencing hearing, held as a result of the decision in O’Meara II, appellant argued that under Blakely and Apprendi, the longest sentences he could receive were the “top of the box” presumptive guidelines. The court found that Blakely did not apply to appellant’s case because appellant’s case had become final in August 2000, well before the decision in Blakely. Based on its earlier findings under the patterned sex offender statute, the court sentenced appellant to two consecutive 25-year prison terms. This appeal followed.
D E C I S I O N
Appellant argues that his sentence is unconstitutional because a judge, not a jury, decided the facts supporting the upward durational departure based on the patterned sex offender statute. He argues that his case was still pending, not yet final, and therefore, the holding in Blakely applies to his case.
petition for postconviction relief is a collateral attack on a judgment which
carries a presumption of regularity and which, therefore, cannot be lightly set
aside.” Pederson v. State, 649 N.W.2d 161, 163 (
argues his case was pending when Blakely was
decided and its holding applies to his case.
Appellant bases his argument on the interpretation of Apprendi v.
[I]f a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule. But if the defendant’s conviction is already final at the time the new rule is announced, then the criminal defendant ordinarily may not avail himself of the new rule.
O’Meara v. State,
679 N.W.2d 334, 339-40 (
On May 13, 2004, the Minnesota Supreme Court reversed and
remanded appellant’s case so that the holding of Apprendi could be applied to
his sentence. O’Meara, 679 N.W.2d at 340.
Although the court remanded, it found that the district court did not
abuse its discretion when it sentenced appellant to an upward departure and
instructed the district court to impose the statutory maximum sentences of two
consecutive 25-year terms plus a conditional release term of 10 years.
Appellant argues he was “sentenced
anew” and therefore, his case was not final and Blakely applies. He argues
his imposed sentence was not amended or corrected but that he was given two
entirely new sentences which makes his case pending. Appellant relies on this court’s decision in State v. Sanders, 644 N.W.2d 483 (
In Sanders, the defendant was improperly sentenced under the career
offender statute but was then sentenced as a dangerous offender, a new
Appellant argues his case is like Sanders because here, the district court was imposing a new sentence, and thus, was required to hold a hearing, giving him the right and opportunity to contest his sentence. Appellant believes the court’s holding in Sanders made the defendant’s case pending, which would then call for the application of any new rule decided while the case was pending. Appellant misses the crux of the court’s reasoning in Sanders. In Sanders, a new hearing was necessary not because the defendant was being re-sentenced, but because the state was sentencing him under a different criminal statute. In appellant’s case, he was not being re-sentenced under a new criminal statute, his sentence was simply adjusted so that it adhered to correct law. In his reply brief, appellant argues his sentence was vacated. However, the supreme court stated appellant’s “sentence was imposed in violation of Apprendi, and must therefore be reduced.” O’Meara,679 N.W.2d at 340 (emphasis added). The principle of Sanders remains. Sanders was resentenced under a different statute, whereas appellant is having the same statutory sentence reduced.
Appellant’s case was final before Blakely was decided. In O’Meara,
the Minnesota Supreme Court determined that appellant’s case became final on
August 6, 2000, almost four years prior to Blakely.
As respondent correctly points out, this courts decision
in State v. Losh supports the
decision that appellant’s case was not pending when Blakely was decided. 694
N.W.2d 98 (
In its decision not to apply Blakely, this court had to determine if the defendant’s case was
Appellant argues that even if his case was not pending, the holding in Blakely is to be applied retroactively. He first argues that the decision in Blakely did not establish a new rule of law but merely applied settled laws to new and different factual situations. In the alternative, he argues, if the court does find that Blakely established a new rule, it is a watershed rule and is applicable to all past cases.
In State v. Houston, the Minnesota Supreme Court held that the Blakely decision created a new rule, but
that it was not “a watershed rule,” and was not to be applied retroactively on
collateral review to convictions that were final before Blakely was decided. 702
N.W.2d 268, 274 (